The School Board of Miami-Dade County
Bylaws & Policies
Unless a specific policy has been amended and the date the policy was revised is noted at the bottom of that policy, the Bylaws and Policies of the Miami-Dade County Public Schools were adopted on May 11, 2011 and were in effect beginning July 1, 2011.
 

6320.04 - CONTRACTOR DISCIPLINE

This policy governs debarment, suspension, and other disciplinary action that may be taken by the School Board against contractors that violate law and Board policies.

The Board shall solicit offers from, award contracts to, and consent only to subcontracts with responsible contractors. Contractors may be suspended and/or debarred from doing business with the Board or otherwise disciplined. Suspension and debarment are serious sanctions that may only be imposed when it is in the best interest of the Board and to protect the public.

The Superintendent is authorized to develop and implement disciplinary procedures that comply with State and Federal laws, ordinances, codes, regulations, and this policy.

Definitions

 A.Affiliates - business concerns, organizations, or individuals that directly or indirectly, a) either control or have the power to control the other, or b) a third party controls or has the power to control both. Indicia of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, common use of employees, or a business entity organized by a debarred entity, individual, or affiliate following the debarment of a contractor that has the same or similar management, ownership, or principal employees as the contractor that was debarred or suspended.

 B.Civil Judgment - a judgment or finding of a civil offense by any court of competent jurisdiction.

 C.Contractor - any individual or other legal entity that:

  1.submits offers for or is awarded, or reasonably may be expected to submit offers for, or to be awarded, directly or indirectly (e.g., through an affiliate), a Board contract for construction or for procurement of goods or services including professional services; or

  2.conducts business, or reasonably may be expected to conduct business, with the Board as an agent, surety, representative, or subcontractor (at any tier) of another contractor;

  3.the terms "vendor" and "consultant" have the same meaning as "contractor". "Subconsultant" has the same meaning as "subcontractor".

 D.Contractor Disciplinary Review Committee (CDRC) - committee responsible for recommending suspension and/or debarment to the Board.

 E.Conviction - a judgment or conviction of a criminal offense, either a felony or misdemeanor, by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere.

 F.Debarment - action taken by the Board to exclude a contractor or subcontractor from Board contracting and Board approved subcontracting for a reasonable, specified period.

 G.Indictment - indictment for a criminal offense. An "information" or other filing by competent authority charging a criminal offense shall be considered and have the same effect as an indictment.

 H.Legal Proceeding - any civil judicial proceeding to which the Board is a party or any criminal proceeding. The term includes appeals from such proceedings.

 I.Preponderance of the Evidence - proof by information that compared with that opposing it, leads to the conclusion that the fact at issue is more probably true than not.

 J.Recommending Department – department seeking disciplinary action against a contractor.

 K.Revocation - action taken to revoke a contractor’s prequalification certificate and/or SMBE/MWBE status.

 L.Substantial Evidence - evidence that a reasonable mind could accept as adequate to support a conclusion. It is defined as "more than a scintilla but less than preponderance", and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion".

 M.Suspension - action taken to temporarily exclude a contractor or subcontractor from contracting or subcontracting with the Board for a reasonable, specified period.

Contractor Disciplinary Review Committee

The Contractor Disciplinary Review Committee (CDRC) is responsible for recommending sanction(s) to the Board. The recommending department head will forward the committee’s decision to the Superintendent who shall forward it to the Board for ratification. The department head is responsible for presenting evidence to the CDRC in support of the disciplinary sanction(s) the department is seeking.

The CDRC shall be composed of individuals from District offices and community organizations, and/or their designees. New voting members shall be appointed or selected every two (2) calendar years. The Superintendent shall solicit and appoint the organizational and community representatives .

The CDRC shall be composed of the following voting members, or designee:

 A.two (2) community representatives, appointed by the Superintendent to serve for a two (2) year period

 B.Chief Financial Officer, Financial Services

 C.Senior Design and Construction Officer, Office of School Facilities

 D.Deputy Superintendent, School Operations

 E.Chief Facilities Officer, Office of School Facilities

 F.Assistant Superintendent, Procurement Management Services

 G.Inspections Officer, District Inspections, Operations and Emergency Management

 H.Office of Economic Opportunity

All members of the CDRC must disclose any conflicts or potential conflicts of interest, and may not vote on any matter upon which there is an actual or potential conflict.

The CDRC reviews recommendations and may impose the following sanctions:

 A.revoke a prequalified contractor’s Prequalification Certificate;

 B.suspend a contractor in violation of any Board policy;

 C.revoke a firm’s SBE/MWBE eligibility;

 D.reinstate a vendor that was suspended or found to be in default;

 E.debar a contractor; and/or

 F.reduce previously imposed sanction periods.

Grounds for Sanctions

 A.The Office of Economic Opportunity (OEO) may recommend to the CDRC that a firm’s SBE/MBE/MWBE status be revoked if the firm or company:

  1.fails to perform a commercially useful function under a contract; and/or

  2.allows its SBE/MBE/MWBE status to be fraudulently used for the benefit of a non-SBE/MBE/MWBE firm or the owners of a non-SBE/MBE/MWBE firm to provide the non-SBE/MBE /MWBE firm or firm owners benefits from affirmative procurement initiatives under Policy 6320.02 for which the non-SBE/MBE/MWBE firm and its owners would not otherwise be entitled.

 B.The OEO may recommend to the CDRC that a contractor’s Prequalification Certificate be revoked and/or that a contractor be suspended if the contractor:

  1.is declared delinquent in accordance with Board Policy 6334;

  2.includes inaccurate or misleading statements in the Contractor Prequalification Application ("Statement of Contractor’s Qualification");

  3.is declared in default by the Board;

  4.is adjudged to be bankrupt;

  5.performs unsatisfactory work for which the Board has recovered liquidated damages in legal action against the contractor;

  6.fails to comply with the Construction Contract Prompt Payment Law (F.S. 715.12);

  7.has a suspended or revoked license;

  8.no longer meets the uniform prequalification criteria established in Board Policy 6334;

  9.willfully falsifies, conceals or covers up by a trick, scheme or device, a material fact or makes any false, fictitious or fraudulent statements or representations, or makes use of any false writing or document;

  10.fraudulently obtains, attempts to obtain or aid another person fraudulently obtaining, or attempting to obtain public monies to which the person is not entitled;

  11.fails to cooperate with any investigation of violations of this policy or any Board policy;

  12.fraudulently obtains, retains, or attempt to obtain, or aid another in fraudulently obtaining, retaining, or attempting to obtain or retain certification status as an SBE/MBE/MWBE under Policy 6320.02;

  13.willfully obstructs, impedes, or attempts to obstruct or impede any authorized official or employee who is investigating the qualifications of a business entity that has requested certification as an SMBE or M/WBE in accordance with Policy 6320.02;

  14.makes false statements to any entity that any other entity is or is not certified as an SMBE or M/WBE.

 C.The recommending department may request that CDRC suspend a company and/or person’s eligibility from doing business with the Board if the company or person:

  1.has committed any of the violations listed above;

  2.violates any provision of any agreement that company and/or person entered into with the District;

  3.has ever been suspended or debarred in any other district;

  4.fails to disclose any information that that company and/or person has a continuing obligation to disclose;

  5.refuses to cooperate with an investigation related to a violation of any Board policy; or has violated the Board’s business ethics and anti-discrimination policies.

 D.Debarment

  1.The CRDC shall recommend debarment when another duly authorized agency or governmental entity, the Board’s chief auditor, the Office of the Inspector General, or Miami-Dade Schools Police, investigates and submits a written report to the CDRC requesting that the CDRC debar a company and/or person from doing business with the Board where a contractor has a conviction or civil judgment for:

   a.committing fraud or a criminal offense in connection with obtaining, attempting to obtain, performing, or making a claim upon any public entity contract or subcontract, or a contract or subcontract funded in whole or in part with public funds;

   b.violating Federal or State antitrust statutes relating to the submission of offers;

   c.violating any Federal or State law regarding immigration, minimum wage or any other applicable employment related law;

   d.committing embezzlement, theft, forgery, bribery, falsification, or destruction of records, making false statements, or receiving stolen property

   e.committing any other payment or performance related offense that seriously and directly affects the completion of one (1) or more contracts or the performance of the completed building, or project, or the delivery of goods and services; or

   f.filing a lawsuit against the Board that a court determines to be frivolous or filed in bad faith

  2.The CDRC may recommend debarment of a contractor based upon a preponderance of the evidence for:

   a.defaulting on, or breaching and failing to cure the breach of a Board contract or subcontract, or a contract or subcontract funded in whole or in part by Board funds, such as by willful and or negligent failure to perform in accordance with the terms of one (1) or more contracts; or the failure to perform, or unsatisfactory performance of one (1) or more contracts;

   b.any other cause of a serious or compelling nature that affects the responsibility of a Board contractor or subcontractor to perform Board work; and

   c.violation of any Board Policy including, but not limited to Board Policy 6460, Business Code of Ethics and Policy 6465, Commercial Anti-Discrimination in Business Operations and Practices.

The CRDC may, in the best interest of the Board and for protection of the public, debar a contractor for any of the causes and using the procedures in this Board policy. The existence of a cause for debarment, however, does not necessarily require that the contractor be debarred. The seriousness of the contractor’s acts or omissions and any mitigating factors should be considered in making any debarment decision.

Application

 A.The fraudulent, criminal, or other seriously improper conduct of any officer, director, shareholder, partner, agent, employee, or other individual associated with a contractor may be imputed to the contractor when the conduct occurred in connection with the individual’s performance of duties for or on behalf of the contractor, or with the contractor’s knowledge, approval, or acquiescence. The contractor’s acceptance of the benefits derived from the conduct may be evidence of such knowledge, approval, or acquiescence.

 B.The fraudulent, criminal, or other seriously improper conduct of a contractor may be imputed to any officer, director, shareholder, partner, employee, or other individual associated with the contractor who participated in, knew of, or had reason to know of the contractor’s conduct.

 C.The fraudulent, criminal, or other seriously improper conduct of any subcontractor associated with a contractor may be imputed to the contractor when the conduct occurred in connection with the subcontractor’s performance of duties for or on behalf of the contractor and the contractor had knowledge of, approved of, or acquiesced in this conduct. The contractor’s acceptance of benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence.

 D.The fraudulent, criminal, or other seriously improper conduct of one (1) contractor participating in a joint venture or similar arrangement may be imputed to other participating contractors if the conduct occurred for or on behalf of the joint venture or similar arrangement, or with the knowledge, approval, or acquiescence of these contractors. Acceptance of the benefits derived from the conduct may be evidence of such knowledge, approval, or acquiescence.

Procedure for Sanctions

 A.At the request of the recommending department, the CDRC shall convene and consider the department’s recommendation for sanctions. The recommending department shall:

  1.convene and serve as staff to the committee; and

  2.coordinate the CDRC hearing.

 B.The recommending department, on behalf of the CDRC, shall issue a notice of proposed sanctions by certified mail, return receipt requested, or hand delivery, and fax, advising the contractor and any specifically named affiliates that:

  1.sanctions are being considered;

  2.the reasons and causes for the recommended sanctions in terms sufficient to put the contractor on notice of the conduct or transaction(s) upon which it is based;

  3.that a hearing shall be conducted before the CDRC on a date and time not less than (20) days after service of the notice;

  4.that the contractor may be represented by an attorney, present documentary evidence and verbal testimony, and cross-examine witnesses presented by the recommending department; and

  5.the potential effect of the recommended sanctions.

 C.Defenses
  The contractor or subcontractor may reply to the notice of sanctions with a list of the defenses, to the recommending department, which the contractor intends to present within (14) days of receipt of the notice.

 D.Discovery
  All parties may request public records under F.S. Chapter 119.

 E.Evidence
  Hearsay evidence shall be admissible at the hearing but shall not form the sole basis of any determination of sanctions.

 F.Procedure for Recording Hearing
  The hearing shall be transcribed and recorded by a court reporter and at the expense of the Board. Copies of the transcript shall be furnished at the expense and request of the requesting party.

 G.Contractor Disciplinary Review Committee Decision

  1.Evidentiary Standard

   a.The CDRC decision to recommend one (1) of the following sanctions must be supported by substantial evidence:

    1)revocation of a prequalified contractor’s Prequalification Certificate;

    2)suspend a contractor in violation of any Board policy;

    3)revocation of a firm’s SBE/MWBE eligibility; and

    4)reinstatement of a vendor that was suspended or found to be in default

   b.The CDRC decision to debar a contractor must be supported by a preponderance of the evidence that the contractor a violation of stated in this policy.

   c.In actions based upon a criminal conviction or civil judgment, or in which there is no genuine dispute over material facts, the CRDC shall make a decision on the basis of all the undisputed material information in the record, including any undisputed material information submitted by the contractor.

   d.Where actions are based on disputed evidence, the CRDC shall decide what weight to attach to evidence of record, judge the credibility of witnesses, and base its decision on the preponderance of the evidence standard.

   e.In the event that the contractor fails (1) to appear at the debarment hearing or (2) to present competent proof under oath through persons with knowledge of the contractor’s performance, the contractor shall be presumed to be non-responsive, non-responsible and subject to sanctions.

   f.The CRDC’s decision shall be based on the vote of a majority of the members of the committee and made within twenty (20) days after conclusion of the hearing, unless the deadline is extended for good cause.

   g.The CDRC’s decision and findings shall be in writing and shall include the committee’s factual findings, the principal causes of debarment as enumerated in this Board policy, identification of the contractor or subcontractor and all affiliates affected by the decision, and the specific term, including the duration, of the debarment.

  2.Notice of CDRC Decision and Administrative Review

   a.If the CDRC decides to recommend sanctions, the recommending department shall give the contractor or subcontractor and any affiliates involved, written notice by certified mail, return receipt requested, or hand deliver, within twenty (20) days of the decision, specifying the reasons for debarment and including a copy of the committee’s written decision, stating the period of debarment including effective dates; and advising that the debarment covers all Board contracts, and subcontracts requiring Board consent, for construction and goods or services, including professional services, and that the Superintendent will recommend debarment to the Board.

   b.A decision by the CRDC to recommend sanctions may be appealed pursuant to F.S. 120.57, to the Division of Administrative Hearings and Bylaw 0133.

   c.The contractor will have fifteen (15) days from the date of receipt of written notice to file a petition in accordance with the process provided in Bylaw 0133, Quasi-Judicial.

   d.Failure to file a petition within the fifteen (15) day period will be considered a waiver of the contractor’s right to appeal and the CDRC’s recommendation for sanctions will be submitted to the Board for final approval.

   e.After receipt of the recommended order from the hearing officer and before the recommended order is submitted to the Board, either party may submit written exceptions to the hearing officer’s recommended order within fifteen (15) calendar days of the date of the recommended order.

   f.Recommended orders will be considered in accordance with Bylaw 0133.

   g.The Superintendent is authorized to suspend all pending work orders, contracts, and/or assignments during the interim period between the Notice of CDRC Decision and final Board Action.

Sanction Period

The CDRC shall recommend a period of up to eighteen (18) months for a suspension and/or revocation and a period of up to three (3) years for a debarment depending upon the severity of the offense.

Reinstatement

Following the suspension, revocation, or debarment period, the contractor may request that CDRC reinstate the contractor’s status with the Board. The contractor’s written request must be submitted to the department that originally recommended sanctions and it is the responsibility of that department to convene the CDRC for the purpose of considering reinstatement.

Reduction of Sanction Period

The CRDC may reduce the sanction period, upon the contractor’s written request to the recommending department, for the following reasons:

 A.newly discovered material evidence;

 B.reversal of the conviction or civil judgment upon which the debarment was based;

 C.bona fide change in ownership or management;

 D.elimination of other causes for which the debarment was imposed; or

 E.the good cause shown that the CDRC deems appropriate and in the best interest of the Board as determined by the CRDC.

The contractor’s written request shall include the reasons for requesting a reduction of the sanction period. The CDRC shall have thirty (30) days from receipt of such request to submit a written response. The decision of the CDRC regarding a request made under this subsection is final.

Effects of Sanctions

 A.Current Contracts/Work

  1.All proposed Board contracts for construction, or the procurement of goods and services, including professional services, shall reference this policy and specify that debarment, revocation of a contractor’s prequalification certificate, or suspension of a contractor, may constitute grounds for termination of any existing Board contract.

  2.Current Board contracts may not be renewed or otherwise extended or consent given to subcontract with suspended, revoked, or debarred contractors, unless the Superintendent, in order to avoid an immediate and serious danger to the public health, safety or welfare, determines that an emergency exists that justifies the renewal or extension, or approves an extension due to delay or for reasons beyond the contractor’s control, and such action is approved by the Board at its next regularly scheduled meeting.

  3.The debarment shall take effect according to the notice provided by the Superintendent pursuant to Notice of Contractor Disciplinary Committee’s Decision except that if a continuing contract or subcontract is in existence at the time the contractor was debarred, the debarment period shall begin upon the conclusion of the contract, absent termination and in the interim the debarred contractor shall not enter into any Board contracts.

  4.Current Board contracts may not be renewed or otherwise extended or consent given to subcontracts with debarred contractors, unless the Superintendent, in order to avoid an immediate and serious danger to the public health, safety or welfare, determines that an emergency exists that justifies the renewal or extension, or for an approved extension due to delay or time extension for reasons beyond the contractor’s control, and such action is approved by the Board.

 B.Future Contracts/Work

  1.Contractors whose prequalification certificates have been suspended or revoked are excluded from receiving contracts, and no District department shall solicit offers from, award contracts to, or consent to subcontract with these contractors, unless the Superintendent, in order to avoid an immediate and serious danger to the public health, safety or welfare, determines that an emergency exists that justifies such action, and obtains approval from the Board at its next regularly scheduled meeting.

  2.No further work shall be awarded to a contractor whose prequalification certificate has been suspended or revoked in connection with a term or miscellaneous construction contract, or a term or miscellaneous contract for services, including professional services, or similar contract, where the work is divided into separate discrete groups and the Board’s refusal or denial of further work under the contract will not result in a breach of such contract.

  3.No further work shall be awarded to a debarred contractor in connection with a continuing or miscellaneous construction contract, or a continuing or miscellaneous contract for goods or services, including professional services, or similar contract, where the work is divided into separate discrete groups and the Board’s refusal or denial of further work under the contract will not result in a breach of such contract.

 C.Subcontract Restrictions

  1.When a contractor whose prequalification certificate has been suspended or revoked is proposed as a subcontractor on a Board project, the department shall not consent to subcontract with such contractor unless the Superintendent, in order to avoid an immediate and serious danger to the public health, safety or welfare, determines that an emergency exists that justifies such consent and the Board approves such decision at its next regularly scheduled meeting.

  2.When a debarred contractor is proposed as a subcontractor for any subcontract, the department shall not consent to a subcontract with such contractor unless the Superintendent, in order to avoid an immediate and serious danger to the public health, safety, or welfare, determines that an emergency exists that justifies such consent and the Board approves the decision.

  3.The Board shall not be responsible for any increases in project costs or other expenses incurred by a contractor as a result of the Board’s rejection of a proposed subcontractor, provided that the subcontractor was debarred prior to bid opening or opening of proposals.

 D.Other Considerations

  1.Debarred contractors are excluded from receiving contracts, and departments of the Board shall not solicit offers from, award contracts to, or consent to subcontracts with these contractors, unless the Superintendent, in order to avoid an immediate and serious danger to the public health, safety or welfare, determines that an emergency exists that justifies such action and obtains approval from the Board. Debarred contractors are also excluded from conducting business with the Board as agents, representatives, partners, and associates of other contractors, subcontractors, or individual sureties.

  2.A contractor’s debarment shall apply to all Board contracts or subcontracts for construction and for the procurement of goods or services, including professional services.

  3.Debarment constitutes debarment of all officers, principals, directors, shareholders owning or controlling ten percent (10%) or more of the stock, partners, qualifiers, divisions or other organizational elements of the debarred contractor, unless the decision to debar is limited by its terms to specific divisions, organizational elements, or commodities. The committee’s decision includes any existing affiliates of the contractor, if they are (1) specifically named and (2) given written notice of the proposed debarment and an opportunity to respond. Future affiliates, associates, or employees of the contractor are subject to a pre-existing debarment decision.

Suspended and Revoked and/or Debarred Contractors List

The Office of Procurement Management Services shall maintain and disseminate information on contractors who have been suspended, debarred, or whose prequalification certification has been revoked, as follows:

 A.compile and maintain a current consolidated list of all contractors that have been declared delinquent which shall be available for public inspection and dissemination;

 B.revise and distribute the list and issue supplements to the Board, the Superintendent, and to all District departments;

 C.maintain records relating to each declaration of delinquency, suspension, revocation, and debarment, in accordance with mandated retention schedules;

 D.establish procedures to provide for the effective use of the list including internal distribution to ensure that departments do not solicit offers from or recommend awarding contracts to contractors that are on the list; and

 E.respond to inquiries concerning contractors that are listed.

The Suspended, Revoked, and/or Debarred Contractors List shall include the following information:

 A.name and address of all suspended, revoked, and debarred contractors;

 B.license or registration number for the contractors whose prequalification certificate has been suspended or revoked;

 C.company’s qualifying agent’s name;

 D.cause for suspending or revoking a contractor’s prequalification certificate or as required by other statutory or regulatory authority, and/or the cause for the debarment action;

 E.effects of the suspension, revocation, or debarment;

 F.effective dates of the suspension, revocation, or debarment; and

 G.name of the office that is responsible for maintaining the list of debarred contractors and subcontractors.

F.S. 287.133, 1001.41(1)(2), 1001.42(25), 1001.43(10)

Revised 3/9/16

© Miami-Dade 2016